Opposition — Gallagher v. Chrysler Corp.

79-2019 |

No. A-895

IN THE

Supreme Court of the United States

October Term, 1980

RAYMOND R. GALLAGHER,

Petitioner,

v.

CHRYSLER CORPORATION

Respondent.

—————___

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

a

WILLIAM S. HURST

HIRA D. ANDERSON, JR.

Chrysler Corporation

Office of the General Attorney

P.O. Box 1919

Detroit, Michigan 48288

(313) 956-5376

Counsel for Respondent

i

TABLE OF CONTENTS

Page

PRET LLL EEE TPCT TES eee ii

EE Soa e heehee AG ede Deb estes ereee Vv

EEE EOS ee ye ee i

Reasons for Not Granting the Writ ..............00005. 3

ee pease y Che ade pee he OAS 17

APPENDIX

Plaintiff s Motion for Rehearing (February 17, 1977)

ii

TABLE OF AUTHORITIES

Cases: Page

Abrams v. Carrier Corp., et al., 434 F2d 1234 (2d Cir.

1970), cert. denied 401 US 1009 (1971) .............. 8, 10

Barbarino v. Anchor Motor Freight, Inc., 421 FSupp 1003

WMS GH eee 9

Barrett v. Craven County Board of Education, 70 FRD

| rer eee ie mee Siete: 15

Butler v. Teamsters Local 823, 514 F2d 442 (8th Cir.

1975), cert. denied 423 US 924 (1975) ............... 8, 10

Cassell v. Michaux, 240 F2d 406 (D.C. Cir. 1956) ........ 13

Cold Metal Processors v. McLouth Steel Corp., 126 F2d

Se Ce: Bae ok 6 obs oe bs eee eee 15

Curry v. Chrysler Corp., United Autoworkers of Ameri-

ca, Local 7, C.A. No. 76-70385 (1977) ..........00005 y)

Curtis Publishing Co. v. Butts, 351 F2d 702 (7th Cir.

1965) aff'd, 388 US 130, 87 SCt 1975, 18 LEd2d 1094

COS iss 6 6 ebb n't ee Woe eee 14

DeArroyo v. Sindicator De Trabajadores Packinghouse,

AFL-CIO, 425 F2d 281 (lst Cir. 1970), cert. denied, 400

US 877 (1970), reh. denied, 400 US 953 (1971) ...... 8, 9, 10

DeLorto v. United Parcel Service, Inc., 401 FSupp 408 (D.

DPN a Sie nts 6a ate ee ee eee )

Derr v. Bright, 297 FSupp 12 (M.D. Penn. 1969) ........ 8

Echols v. Chrysler Corp., International Union, United

Auto Workers of the Local 212, C.A. No. 670661 (1976) . 9

Gainly v. Brotherhood of Packing & Steamship Clerks, 303

Pee Te CG PD 6 6b ona kel eee eee 13

Gallagher v. Chrysler Corporation, 613 F2d 167 (6th Cir.

PEUONE: bn ba Wha eS Rk oe a ee ee cee wane eee 3

Geordano v. McCartney, 385 F2d 154 (3d Cir. 1967) ..... 15

Ginsberg v. Stern, 242 F2d 379 (3d Cir. 1957) ........... 13

Glick v. White Motor Co., 458 F2d 1257 (3d Cir. 1972) .... 13

Glowacki v. Motor Wheel Corp., 67 MichApp 448, 241

POU Oe PO hak v0 base ee eee 4,9

iii

Page

Grant v. Mulville Bros. Motor Service, Inc., 428 FSupp 45

20 bee || ie 7 (;) 8

Gray v. Dukedom Bank, 216 Fed 108 (6th Cir. 1954) ..... 13

Hill v. Aro Corp., 275 FSupp 482 (N.D. Ohio 1967) ...... 5)

International Nikoh Corp. v. H. K. Porter Co., 374 F2d 82

PUG, FOBT) ccc ccc etre rc ecvennenveevvvens 15

International Union, United Automobile, Aerospace and

Agricultural Implement Workers of America v. Hoosier

Cardinal Corp., 383 US 696, 86 SCt 1107, 16 LEd2d

Oe eee ee 4,9, 10

J. E. Riley Investment Co, v. Commissioner of Internal

Revenue, 311 US 55, 61 SCt 95, 85 LEd 26 (1940) ...... 15

Jaffke v. Dunham, 352 US 280, 77 SCt 307, 1 LEd2d 314

DEEL GUGRA Task ash assacseerscvureseeeverss 15

Johnson v. Colts, Inc., 306 FSupp 1076 (D. Conn, 1969) .. 8

Kelly v. Delaware River Joint Commission, 187 F2d 93 (3d

CME Rane dae s set navenectcesvervecerecnece 13

Keohane v. Swarco, 320 F2d 108 (6th Cir. 1954) ......... 13

Kinnunen v. American Motors Corp., 56 FRD 102 (E.D.

EE Se eee ee ee 8

Kirkland v. Cooper, 438 FSupp 808 (D.C. S.C. 1977) ..... 15

Market v. Swift and Co., 173 F2d 517 (2nd Cir. 1949) ..... 13

Morin v. Buick Motor Division of General Motors Corp.,

et al., 78 LC 911,321 (E.D. Mich. 1976) ........+++5: 9

Nugent v. Yellow Cab Co., 295 F2d 794 (7th Cir. 1961),

cert. denied, 369 828 (1962) ....... cece rere eee eneee 13

Paine ¢> William v. Baldwin Rubber Cu., 113 F2d 840 6th

MM access tcscctesrersseseasersrecccrers 15

Parks v. “Mr. Ford”, 68 FRD 305 (E.D. Penn. 1975) ..... 13

Roach v. Sligman, 412 FSupp 521 (E.D. Penn. 1976) ..... 15

Sanderson v. Ford Motor Co., 483 F2d 102 (5th Cir.

ks aur hadawseneecsvertccccees 8, 10

Smart v. Ellis Trucking Co., 380 F2d 215 (6th Cir. 1978),

cert. denied, 490 US 958 (1979) «0... 5 secre eee )

iv

Page

Snowden v. D. C. Transit System, Inc., 454 F2d 1047

CN Gals SUED 44 Es da kted aN as ear sne ees 14

Vac-Air Inc. v. John Mohr & Sons, Inc., 471 F2d 231 (7th

oe Bee ere ere rete Seer rr 12

Vaca v. Sipes, 386 US 188, 87 SCt 903, 17 LEd2d 842

CRED asi evdutek ce ak ken ae Rina hs re eae ees 6

Washington v. Chrysler Corporation and UAW/CIO,

Local 51, et al., 68 MichApp 324, 242 NW2d 781 (1976) . 9

Woodham v. American Cytoscope Co. of Pelham N.Y., 335

Pare Gr Gal SUED heh n ea wedi ves ceke eee 12

Statutes:

Labor Management Relations Act, §301, 29 USC §185 2, passim

Michigan Compiled Laws Annotated, §600.5805(7) and (8) 5

Other Authorities:

Rule 59(e) Federal Rules of Civil Procedure ........... 12,13

Rule 60(b) Federal Rules of Civil Procedure ........ 12, 13, 14

Rule 56(e) Federal Rules of Civil Procedure ............. 15

Local Court Rule IXA USDC, Eastern District of Michi-

MPU RERERECEUE TORE ae ee 14

Moore's Federal Practice, Vol. 3 415.07[2] p. 855 .........

Moore’s Federal Practice, Vol. 6A 9959.12 and 59.04 ...... 13

Moore's Federal Practice, Vol. 7 9960.18[8], 60.19,

See, COE wakuS cc cv does betas 1 eeeeert teeeeG 14, 15

Vv

QUESTIONS PRESENTED

I.

WHERE AN EMPLOYEE FILES SUIT PURSUANT TO

§301, 29 USC §185, AGAINST HIS EMPLOYER FOR

WRONGFUL DISCHARGE AND AGAINST HIS UNION

FOR BREACH OF ITS DUTY OF FAIR REPRESENTA-

TION, AND THE STATE STATUTE OF LIMITATIONS

FOR SUCH LAWSUITS; AS TO BOTH THE

EMPLOYER AND UNION DEFENDANTS IS THREE

YEARS, IS IT ERRONEOUS FOR THE COURTS

BELOW TO APPLY SAID STATUTE OF LIMITATIONS

TO THE EMPLOYEE’S CLAIMS AGAINST DEFEND-

ANTS?

Il

IS THERE A DIVERSITY OF OPINION BETWEEN

THE FEDERAL CIRCUIT COURTS OF APPEALS AS

TO WHETHER, IN ACTIONS BROUGHT UNDER §301,

29 USC §185, THE FEDERAL COURTS SHOULD

APPLY THE MOST APPROPRIATE STATE STATUTE

OF LIMITATIONS?

Ill

MUST THE DISTRICT COURT'S DISMISSAL OF

PLAINTIFF’S CAUSE OF ACTION AGAINST THE

EMPLOYER DEFENDANT BE AFFIRMED NO MAT-

TER WHAT DETERMINATION IS MADE AS TO

WHAT STATUTE OF LIMITATIONS SHOULD BE

APPLIED TO SAID CAUSE OF ACTION?

No. A-895

IN THE

Supreme Court of the United States

October Term, 1980

RAYMOND R. GALLAGHER,

Petitioner,

v.

CHRYSLER CORPORATION

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

a

STATEMENT OF THE CASE

On December 6, 1971, petitioner (hereinafter plaintiff) was

discharged from the employment of respondent (hereinafter de-

fendant) for bringing a revolver into defendant's plant in viola-

tion of company rules.

A grievance was filed protesting plaintiff's discharge by plain-

tiff's Union, Local 372, United Automobile, Aerospace and Ag-

ricultural Implement Workers of America (UAW) and pro-

cessed to the third state of the grievance procedure where it was

withdrawn without prejudice by the UAW due to the fact

plaintiff was aware of defendant's rule against bringing firearms

into the plant and that defendant's policy of discharging

employees for violation of the aforementioned rule had been

upheld by numerous arbitration decisions.

2

On February 13, 1976, plaintiff commenced this action seek-

ing lost wages and reinstatement in the United States District

Court for the Eastern District of Michigan. The jurisdiction of

the District Court was invoked under §301 of the Labor Man-

agement Relations Action of 1947, 29 USC §185 (hereinafter

§301). In his Complaint, plaintiff alleged that defendant had

breached the collective bargaining agreement between defend-

ant and the union by discharging plaintiff without just cause.

Plaintiff also joined in the suit the Local Union and the Interna-

tional Union alleging the union breached its duty of fair rep-

resentation when it withdrew its grievance from arbitration.

On Janvary 25, 1977, District Judge Philip Pratt filed a

Memorandum Opinion and Order Granting Defendant's Mo-

tion for Summary Judgment. (See Petitioner’s Appendix, page

27.) This Order was based on three grounds. Initially, the exist-

ing Federal law required that the appropriate state statute of

limitations be applied to actions brought under §301 and that

the Michigan three year limitations period had been deter-

mined by Michigan Courts as applicable to such actions; and

therefore, plaintiffs claim was barred as to both defendants.

Additionally, since plaintiff filed no affidavits with his brief in

opposition to defendants’ Motion for Summary Judgment, de-

fendants’ affidavits were unrebutted and had to be considered

true for purposes of the motion. Based upon defendants’ unre-

butted affidavits, the District Court found that plaintiff's claims

was also barred because the union did not breach its duty of

fair representation and that plaintiff failed to pursue and

exhaust his internal union remedies.

Plaintiff filed a Motion for Rehearing. On April 1, 1977, the

District Court denied said motion. Initially, the Court recog-

nized that said motion was not in compliance with the Local

Rule 1X-A governing motions for rehearing. However, the Dis-

trict Court nevertheless made a determination that the plain-

tiff's affidavit belatedly filed with his Motion for Rehearing

3

failed to set forth any conduct of defendant union which would

constitute a breach of its duty of fair representation.

Plaintiff appealed to the United States Court of Appeals for

the Sixth Circuit from the Order of Dismissal of defendant and

the denial of plaintiff's Motion for Rehearing. On January 22,

1980, the Court of Appeals affirmed the judgment of the Dis-

trict Court (p. 20 of Petition in the Appendix, Gallagher v.

Chrysler Corporation, 613 F2d 167 (1980)). The Court held

that the same statute of limitations applied to both plaintiff's

claim against defendant and against the union and that the

applicable state statute of limitations is specifically determined

by Michigan Courts was the Michigan three year statute of

limitations for personal injury actions.

REASONS FOR NOT GRANTING THE WRIT

The decision of the courts below to apply the most applicable

state statute of limitations to plaintiff's claim against defendant

is completely in accord with existing precedent established by

this Court. There is no diversity of opinion with regard to this

issue between the Circuit Courts of Appeal, although these

courts have come to different conclusions as to the time limita-

tions actually applied since different states have different limi-

tation periods. Finally, even a ruling by this Court that the

courts below used the wrong statute of limitations would not

change the ultimate disposition of this case since there were

other grounds upon which the District Court’s dismissal must

be upheld.

A

The Sixth Circuit Court of Appeals and the District Court

Below Properly Ruled that Plaintiffs Claim of Wrongful

Discharge Against his Employer is Governed by the Michi-

gan Three Year Limitations Period.

Plaintiff mischaracterizes the decision of the courts below as

judicial legislation creating a uniform statute of limitations for

4

§301 actions against an employer and actions for breach of the

duty of fair representation against a union. Such a misinterpre-

tation completely ignores the context in which this issue was

decided from the standpoint of the law in effect and the state in

which this case arose.

Since §301 of the Labor Management Relations Act has no

limitations period provided within the Act itself, it was neces-

sary for the Supreme Court to formulate a rule by which an

appropriate limitations period could be made applicable to such

actions. Such a rule was formulated in International Union,

United Automobile, Aerospace and Agricultural Implement Work-

ers of America v. Hoosier Cardinal Corp., 383 US 696, 86 SCt

1107, 16 LEd2d 192 (1966). The Court held in that case that

the timeliness of such a suit “is to be determined, as a matter of

Federal law, by reference to the appropriate state statute of

limitations”. (pp. 704-5, emphasis added) After establishing this

general principle, this Court went on to set forth the rule by

which the appropriate state statute of limitations is to be

selected:

“We agree that the characterization of this action for

the purpose of selecting the appropriate state limitations

provision is ultimately a question of federal law. (cita-

tions omitted). But there is no reason to reject the

characterization that state law would impose unless that

characterization is unreasonable or otherwise inconsist-

ent with national labor policy.” (citations omitted) p. 706

The courts below ruled in accordance with the above direc-

tive of this Court. The highest court of record in the State of

Michigan which has addressed this issue is the Michigan Court

of Appeals in the case of Glowacki v. Motor Wheel Corp., 67

MichApp 448, 241 NW2d 240 (1976). In that case plaintiff's

Amended Complaint alleged that her employer wrongfully dis-

charged her in violation of the contract, and that the union

breached its duty of fair representation to her by failing to pro-

cess plaintiff's grievance in a timely fashion. Although it is not

5

specifically stated in the Court of Appeals Opinion that this was

an action under §301, it is clear from the Opinion that the

Court treated this case as such an action since it relied on a

number of Federal decisions under §301 for precedential au-

thority. Plaintiff filed her Complaint four years after her termi-

nation. Both defendants moved for dismissal based upon the

Michigan three year statute of limitations. Plaintiff apparently

argued that the Michigan six year statute of limitations for con-

tract was applicable to her cause of action. The statutes in ques-

tion read as follows in pertinent part:

“600.5805 Injuries to person or property

“Sec. 5805. No person may bring or maintain any ac-

tion to recover damages for injuries to persons or prop-

erty unless, after the claim first accrued to himself or to

someone through whom he claims, he commences the

action within the periods of time prescribed by this sec-

tion.

x * *

“(7) The period of limitations is 3-years for all other

actions to recover damages for injuries to persons and

property. P.A. 1961, No. 236, §5805, Eff. Jan. 1, 1963.

“600.5807. No person may bring or maintain any ac-

tion to recover damages or sums due for breach of con-

tract, or to enforce the: specific performance of any con-

tract unless, after first accrued to himself or to someone

through whom he claims, he commences the action

within the periods of time prescribed by this section.

** *

“(8) The periods of limitation is six years for all other

actions to recover damages or sums due for breach of

contract.”

As to the union, the Court followed those Federal decisions

holding that an action for breach of a union’s duty of fair rep-

resentation sounded primarily in tort and held that the Michi-

gan three year limitation period for injuries to the person or

property applied. With regard to the employer, the Court then

went on to hold that:

6

“[17,18] In summary, we agree with plaintiff that there

are two separate claims which comprise plaintiff's com-

plaint. We further agree with plaintiff that in suits for

breach of the duty of fair representation the governing

period of limitations is the state statute which most di-

rectly applies (International U.U.A.A. & A.I.W. v.

Hoosier Cardinal Corp., 383 US 696, 705, 86 SCt 1107,

1113, 16 LEd2d 192 [1966]) and that the two claims are

so intimately related as to require the same period of

limitation to apply to both. Strong reasons of public pol-

icy exist for applying the same period of limitations to

both actions. We disagree that the applicable state stat-

ute is six years. The recent decision of this Court in

Stringer, supra, clearly points to the application of the

three year statute.”

This holding is neither unreasonable nor inconsistent with

Federal policy. Indeed, it is plaintiffs position that two differ-

ent limitation periods should apply to the union and employer

respectively, which is inconsistent with Federal policy. Under

plaintiff's theory, the employer could be sued by the employee

with the Court having no jurisdiction over the union. In Vaca

v. Sipes, 386 US 188, 87 SCt 903, 17 LEd2d 842 (1967), this

Court alluded that it would frown on such a situation when it

stated there would be no sense to “a rule which would permit a

court that has litigated the fault of employer and union to fash-

ion a remedy only with respect to the employer?” Vaca at p.

187. Furthermore, at footnote 12 the Court stated:

“.. . These remedy problems are difficult enough when

one tribunal has all parties before it; they are impossible

if two independent tribunals, with different independ-

ent tribunals, with different procedures, time limita-

tions, and remedial powers, must participate.” (em-

phasis added) at p. 188

Admittedly, these statements by the Supreme Court were

made with regard to an issue somewhat different than that

under consideration here, but the problems noted above which

were of concern to the Court are just as apparent here if plain-

7

tiffs theory is allowed to prevail. Because of the fact that an

employee must first prove that the union breached its duty of

fair representation to him as a prerequisite to maintaining an

action against his employer for breach of the collective bargain-

ing agreement, Vaca v. Sipes, supra, the interdependency of

the action against the union and the action against the

employer is extensive. Furthermore, if liability is found against

the two defendants, damages must be allocated between them.

Certainly if the union is not a party to the action because of the

passage of a limitations period applicable to it, the proceedings

are severely handicapped and the employer is placed in the

most unfair position of having to defend the adequacy of the

union's representation as well as the claim of breach of the col-

lective bargaining agreement. This is unfair to the employer

because it does not necessarily know all of the pertinent factors

that concern the determination made by the union as to the

processing of a particular employee’s grievance. While this can,

to some extent, be ameliorated by discovery, it is far from an

adequate remedy. The employer is not going to be familiar

with the internal union procedures, practices and personalities

(a very important factor in such cases) which compose the cir-

cumstances surrounding the representation of an employee.

The only way our adversary system can be properly and fully

effectuated in a §301 action is to make the union a party and

give it a vested interest in bringing forth all facts which tend to

show an employee was given fair representation. Indeed, if the

union is not a party and is immune from liability, it has no

reason to cooperate with the employer in order to show that

the employee was fairly represented and has many reasons not

to cooperate since by not doing so it is aiding a constituent in

acquiring a recovery from the employer which the union was

unable to acquire during the grievance proceeding.

It is because of these aforementioned difficulties which result

in the plaintiffs, in the great majority of §301 cases, bringing an

action against both the employer and the union. In those rare

8

cases where the union is not named as a party defendant, the

court will normally order that the union be joined as a defend-

ant. Kinnunen v. American Motors Corp., 56 FRD 102 (E.D.

Wis. 1972); Johnson v. Colts, Inc., 306 FSupp 1076 (D. Conn.

1969); see also Derr v. Bright, 297 FSupp 12 (M.D. Penn.

1969). Such procedural practices destroy, as a practical matter,

plaintiffs argument at page 15 of his Petition that the applica-

ble statute of limitations should not depend upon the presence

or absence of a party since the union will in the normal course

of events always be a party defendant in such actions.

While one circuit has clearly, albeit reluctantly, rejected the

above discussed considerations and found that two different stat-

utes of limitations should apply to the actions by an employee

against his union and his employer under §301, even that Cir-

cuit suggested that Congress should correct the problems at-

tendant to such a scheme by enacting a uniform limitations

period for §301 actions. DeArroyo v. Sindicato De Trabaja-

dores Packing, AFL-CIO, 425 F2d 281 (lst Cir. 1970) at pp.

286 and 287, cert. denied, 400 US 877 (1970). The Fifth Circuit

followed the First Circuit in Sanderson v. Ford Motor Co., 483

F2d 102 (5th Cir. 1973). The other Courts which have addres-

sed this issue, however, found that an identical limitations

period for both the union and the employer is necessary to

properly effectuate federal policy in the area of labor relations.

Abrams v. Carrier Corp., et al., 434 F2d 1234 (2d Cir. 1970),

cert. denied 401 US 1009 (1971); Butler v. Teamster Local 823,

514 F2d 442 (8th Cir. 1975), cert. denied, 423 US 924 (1975);

and Grant v. Mullville Bros. Moter Service, Inc., 428 FSupp 45

(N.D. Ill. 1976). The distinctive feature between the cases

cited immediately hereinbefore and the instant case is that the

aforementioned decisions applied the longer contract statute of

limitations to both the employer and the union rather than the

shorter personal injury statute of limitations. The reason for

this, however, is readily apparent. There was no shorter per-

sonal injury limitations period which could be interpreted

9

under the existing state law to apply to the action against the

employer. In the matter at bar, however, the existing law of

Michigan applies the shorter personal injury limitations period

specifically to actions against the employer for breach of the

collective bargaining agreement when coupled with an action

against the union for breach of its duty of fair representation.

Glowacki v. Motor Wheel Corp., supra; Smart v. Ellis Trucking

Co., 580 F2d 215 (6th Cir. 1978), cert. denied, 440 US 958

(1979); see also Washington v. Chrysler Corporation and the

UAW/CIO Local 51, et al., 68 MichApp 374, 242 NW2d 781

(1976). Thus, state law has characterized the action for the pur-

pose of selecting the appropriate limitations period. This

characterization is in harmony with Federal policy not only for

ihe reasons discussed above but also because the shorter limita-

tions period facilitates the Federal goal of a relatively rapid dis-

position of labor disputes. Indeed, whenever possible, the

Federal Courts, when given a choice, are inclined to select the

shorter limitations period to effectuate that goal. Hossier, supra

at p. 707, DeArroyo v. Sindicato De Trabajadores Packing

AFL-CIO, supra at 287, Barbarino v. Anchor Motor Freight,

Inc., 421 FSupp 1003 (WD NY 1976) at p. 1006, applying a

ninety day limitations period to an action to overturn an arbi-

tration award; DeLorto v. United Parcel Service, Inc., 401

FSupp 408 (D.Mass. 1975); Hill v. Aro Corp., 275 FSupp 482

(N.D. Ohio 1967). Morin v. Buick Motor Division of General

Motors Corp., et al., 78 LC 411,321 (E.D. Mich. 1976).

It is apparent from the foregoing that the Courts below were

correct when it selected the Michigan three year limitations

period to apply to an action brought under §301 of the Labor

Management Relations Act against the employer and the

union. The decisions below are consonant with the standards set

forth in Hoosier and the Federal labor policy. Finally, it should

be noted that other decisions of the United States District

Court for the Eastern District of Michigan have ruled, prior to

the Sixth Circuit's decision in this case, that the three year

10

limitations period applies to the action against the employer as

well as the union in such suits. Curry v. Chrysler Corporation,

United Autoworkers of America, Local 7, C.A. No. 76-70385

(1977) and Echols v. Chrysler Corporation, International

Union, United Auto Workers and the Local 212, C.A. No.

67066 1 (1976).

From the foregoing, it is clear that the Sixth Circuit has not

arbitrarily created a uniform statute of limitations for actions

brought under §30i against an employer and for breach of the

duty of fair representation against a union. Nor has it turned a

§301 action against an employer into an action for breach of

duty of fair representation as suggested by plaintiff at pages 10

and 11 of his Petition. Clearly, the four reasons set forth at

pages 11 and 12 of said Petition supposedly to demonstrate why

such an alleged metamorphosis is contrary to Federal labor pol-

icy have no relevance to the issue at hand since they are set

forth to support a fallacious premise.

For the reasons stated above, this Petition should be denied.

There is No Diversity of Opinion Between the Courts as to

What Statute Of Limitations to Apply in a §301 Lawsuit

In an attempt to demonstrate to this Court that there is a

diversity of opinion between the Circuit Courts of Appeal as to

what state statute of limitations to apply, plaintiff has paraded a

number of decisions on page 17 of his brief in which the same

statute of limitations was applied to both the union and the

employer, Abrams v. Carrier Corp., supra, and Butler v. In-

ternational Brotherhood of Teamsters, Local 283, supra, or in

which different limitations periods were applied, DeArroyo v.

Sindicato De Trabajadores Packing AFL-CIO, supra, and

Sanderson v. Ford Motor Co., supra.

Yet, all of these cases recognized the law of UAW v. Hoosier

Cardinal Corp., supra, that the Federal Courts are to apply the

11

most appropriate state statute of limitations in actions brought

under §301. However, the various circuits developed different

opinions as to the characterization of the actions for the pur-

pose of selecting the appropriate state limitations provision.

The cardinal distinction between all of the other cases which

addressed this issue and the instant case is that there was no

state law which specifically characterized the action against the

employer under §301 and the action against the union for

breach of the duty of fair representation for the purpose of ap-

plying the appropriate state statute of limitations. In this case,

the law of the State of Michigan, through its Court of Appeals,

has done just that, and the Courts below in this matter have

not seen fit to reject that characterization finding it neitl.cr un-

reasonable nor inconsistent with national labor policies for the

reasons discussed in Part A hereof.

Therefore, accepting plaintfiff’s Petition for Certiorari would

not resolve any differences between the Circuit Courts of Ap- .

peals as to how, in the absence of characterization by state law,

to characterize suits filed against the employer under §301 and

suits against the union for the breach of duty of fair representa-

tion since that is not the issue in the instant matter before the

Court.

C

Even if This Court Finds That The Courts Below Applied

The Wrong Statute of Limitations to Plaintiff's Action

Against Defendant the Dismissal of Plaintiff's Action By

The District Court Must Still Be Sustained

Initially, it should be noted that the motions of defendants

Chrysler Corporation and the UAW for Summary Judgment

and supporting affidavits were not resisted by any opposing af-

fidavits filed on behalf of plaintiff at the time of hearing. Thus,

the District Court had to consider the facts set forth in the

affidavits submitted by the UAW and Chrysler Corporation as

true for the purposes of those motions. The District Court found

12

that based on those affidavits that there was'no genuine issue of

material fact which would support a finding that the union

breached its duty of fair representation. After the District

Court issued its opinion and order granting defendant's Motion

for Summary Judgment, the plaintiff filed a motion for rehear-

ing. Since plaintiff filed his Motion for Rehearing after a judg-

ment had been rendered, that motion must be considered to

have been brought pursuant to Rule 59(e) or Rule 60(b) of the

FRCP. Rule 59(e) reads as follows:

“(e) Motion to Alter or Amend a Judgment. A motion

to alter or amend the judgment shall be served not later

than 10 days after entry of the judgment.

Rule 60(b) reads in pertinent part as follows:

‘“(b) Mistakes; Inadvertence; Excusable Neglect;

Newly Discovered Evidence; Fraud; etc. On motion

and upon such terms as are just, the court may relieve a

party or his legal representative from a final judgment,

order, or proceeding for the following reasons: (1) mis-

take, inadvertence, surprise, or excusable neglect; (2)

newly discovered evidence which by due diligence

could not have been eageas in time to move for a

new trial under Rule 59(b); (3) fraud (whether heretofore

denominated intrinsic or vl misrepresentation,

or other misconduct of an adverse party; (4) the judg-

ment is void; (5) the judgment has been satisfied, re-

leased, or discharged, or a prior judgment upon which it

is based has been reversed or otherwise vacated, or it is

no longer equitable that the judgment should have

prospective application; or (6) any other reason justifying

relief from the operation of the judgment. The motion

shall be made within a reasonable time, and for reasons

(1), (2), and (3) not more than one year after the judg-

ment, order, or proceeding was entered or taken .

While Rule 59(e) speaks of a “motion to alter or amend” a

judgment it is also intended to encompass motions to vacate a

judgment. Vac-Air, Inc. v. John Mohr & Sons, Inc., 471 F2d

231 (7th Cir. 1973); Woodham v. American Cytoscope Co. of

13

Pelham, N.Y., 335 F2d 551 (5th Cir. 1964); Gainley v. Brother-

hood of Railway and Steamship Clerks, 303 F2d 716 (3rd Cir.

1962); and Market v. Swift & Co., 173 F2d 517 (2d Cir. 1949).

See Moore's Federal Practice, Vol. 6A, 459.12[1] at pp. 59-250.

Plaintiffs Motion for Rehearing necessarily entails a request

that the Court vacate its original judgment in order to allow a

rehearing. Thus, after a matter is dismissed without leave to

amend and a judgment is entered, any request for amendment

of the pleadings should be allowed only after the plaintiff

moves for relief under Rules 59(e) or 60(b). Gisberg v. Stern,

242 F2d 379 (3d Cir. 1957); Cassell v. Michaux, 240 F2d 406

(D.C. Cir. 1956); Kelly v. Delaware River Joint Commission,

187 F2d 93 (3d Cir. 1951), cert. den., 342 US 812, 72 SCt 25,

96 LEd 614 (1951); Market v. Swift & Co., supra and Parks v.

“Mr. Ford”, 68 FRD 305 (E.D. Pa. 1975). See Moore's Federal

Practice, Vol. 3, 415.07[2] at page 855.

Since Rule 59(e) requires that a party serve such a motion

not later than ten days after the entry of the judgment and

plaintiff in the instant matter filed his motion on February 17,

1977 (which was served on defendant Chrysler Corporation on

February 22, 1977) which was twenty three days subsequent to

the entry of the January 25, 1977 judgment, he is precluded

from filing a motion under 59(e). Keohane v. Swarco, 320 F2d

429 (6th Cir. 1963). Gray v. Dukedom Bank, 216 F2d 108 (6th

Cir. 1954) and Market v. Swift & Co., supra. This time period

cannot be enlarged by the Court as is indicated by Rule 6(b),

not even by agreement of the parties, Nugent v. Yellow Cab

Co., 295 F2d 794 (7th Cir. 1961) cert. denied, 369 US 828, 82

SCt 844, 7 LEd2d 793 (1962). See Moore's Federal Practice,

Vol. 6A, 959.12 at pp. 59-251 and 59-253. If, however, a mo-

tion is filed which is untimely under Rule 59(e) but neverthe-

less sets forth the elements which are cognizable under Rule

60(b), it should be heard pursuant to latter rule. Glick v. White

Motor Co., 458 F2d 1287 (3d Cir. 1972). See Moore’s Federal

Practice, Vol. 6A 459.04[4] at p. 59-26. Furthermore, the fact

14

that plaintiff did not label his motion as one brought under

Rule 60(b) does not change its character, and it should be

treated as such a motion. Snowden v. D.C. Transit System,

Inc., 454 F2d 1047 (D.C. Cir. 1972). See also Moore's Federal

Practice, Vol. 7, 4960. 18[8] at p. 216.1, 60.28[3] at p. 407.

Having established that plaintiff's Motion for Rehearing is

governed by the standards of Rule 60(b), it is now necessary to

ascertain if said motion had any merit.

As can be seen from the above-quoted Rule, a party moving

under Rule 60(b) must set forth one of the six reasons set forth

therein to be relieved of a final judgment. An examination of

plaintiffs Motion for Rehearing (Defendant's Appendix page

herein) will readily reveal that he set forth no reason cognizable

under Rule 60(b) to justify the relief requested. Plaintiff's only

attempt to justify his motion is set forth in paragrah 2 therein

where he vaguely asserts that he was not able to file his brief in

a timely fashion due to circumstances beyond his control. He

gives no reason whatsoever as to why no opposing affidavit

was filed either prior to or at the time of the hearing on defend-

ant’s Motion for Summary Judgment.

In addition to the foregoing, plaintiff's Motion for Rehearing

was not filed in a timely fashion under Local Rule 1X-A of the

Federal District Court for the Eastern District of Michigan.

This rule requires the motions for rehearing be filed within

twenty days after judgment is entered. (Plaintiff's Appendix pp.

24 and 25) Notwithstanding these defects, the Court below dis-

posed of plaintiff's motion on the merits and denied his Motion

for Rehearing.

Plaintiffs Amended Notice of Appeal seeks review of both

the lower Court’s Order and Judgment granting defendant's

Motion for Summary Judgment and the Opinion and Order

denying Appellant's Motion for Rehearing.

The standard of review with regard to a lower court's deci-

sion on a Rule 60(b) motion is whether the lower court abused

its discretion in denying plaintiffs motion. Curtis Publishing

15

Co. v. Butts, 351 F2d 702 (7th Cir. 1965) affd 388 US 130, 87

SCt 1975, 18 LEd2d 1094 (1967), International Nikoh Corp. vt.

H. K. Porter Co., 374 F2d 82 (7th Cir. 1967) and Geordano v.

McCartney, 385 F2d 154 (3d Cir. 1967). See also Moore's Fed-

eral Practice, Vol. 7, 4960.19 at pp. 227 and 228, and 60.30{1]

at p. 419. Clearly, the Court below did not abuse its discretion

in denying plaintiffs Motion for Rehearing given the above-

mentioned deficiencies of said .motion. Furthermore, it is

axiomatic that a decision of a lower court must be sustained if

there are any grounds in the record to support that decision

even though those other grounds were not relied on by the

lower court in making its determination. Jaffke v. Dunham, 352

US 280, 77 SCt 307, 1 LEd2d 314 (1957); J. E. Riley Invest-

ment Co. v. Commissioner of Internal Revenue, 311 US 55, 61

SCt 95, 85 LEd 26 (1940); Cold Metal Processors v. McLouth

Steel Corp., 126 F2d 185 (6th Cir. 1942); Paine & Williams v.

Baldwin Rubber Co., 113 F2d 840 (6th Cir. 1940).

Certainly the procedural deficiencies of plaintiff's Motion for

Rehearing were in themselves sufficient reason to deny plain-

tiffs motion, and the Court below clearly did not abuse its dis-

cretion in denying that motion.

Since plaintiffs Motion for Rehearing was properly denied,

plaintiff's belated affidavit, submitted therewith, cannot be

considered to have been before the Court below when it

granted defendant’s Motion for Summary Judgment. When a

motion for summary judgment is made and supported by af-

fidavits (as was the case here), a plaintiff may not rest upon the

mere allegations or denial of his pleadings but must bring forth,

by affidavit or otherwise, specific facts showing the existence of

a genuine issue of fact for trial. Federal Rules of Civil Proce-

dure Rule 56(e) Kirkland v. Cooper, 438 FSupp 808 (D.C. S.C.

1977); Roach v. Sligman, 412 FSupp 521 (E.D. Penn. 1976);

Barrett v. Craven County Board of Education, 70 FRD 466,

(E.D. N. Car. 1976).

16

There is no question that plaintiff failed to comply with this

rule in opposing the Motion for Summary Judgment of

Chrysler Corporation and the UAW. Plaintiff cannot claim that

at the time of hearing there was sufficient evidence before the

Court to show any genuine issues of fact as to whether the

union breached its duty of fair representation.

Therefore, even if the issue upon which this Petition is based

is resolved in plaintiff's favor, it will not change the outcome of

this case.

17

CONCLUSION

It is respectfully submitted that the ruling below should be

sustained. Both the District Court and the Sixth Circuit ren-

dered decisions which were congruent with the existing Fed-

eral labor law and policy.

The actual holding of the courts below is not in conflict with

the determinations made in other circuits due to the fact that

the Statute of Limitations applied to the employer was that

which the law of the State of Michigan applies to employers in

such actions.

Finally, even if this Court were to agree with plaintiff's posi-

tion as to what constitutes the appropriate Statute of Limita-

tions to apply in this matter, that would not change the ulti-

mate disposition of plaintiff's case.

Therefore, for the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

WILLIAM S. HURST

HIRA D. ANDERSON, JR.

Counsel for Respondent

Chrysler Corporation

Office of the General Attorney

P.O. Box 1919

Detroit, Michigan 48288

313/956-5376

APPENDIX

Motion for Rehearing

MOTION FOR REHEARING

(Filed February 17, 1977)

Now comes Plaintiff, RAYMOND R. GALLAGHER, by and

through his attorneys GLOTTA, ADELMAN, DINGES,

DAVIS, MIDDLETON, RILEY & MURPHY, P.C., and states

as follows:

1. That on January 25, 1977, this Court issued its

Memorandum, Opinion and Order granting Defendants’ Mo-

tions for Summary Judgment.

2. That due to events beyond the control of Plaintiff's coun-

sel the Plaintiffs brief was untimely presented to this Court

and therefore Plaintiffs counsel was not allowed oral argument

on January 24, 1977.

3. That Plaintiff respectfully submits that this Court's

Memorandum, Opinion and Order is in error in several re-

spects and the Plaintiff's authorities cited in his brief should be

brought to the attention of this Court.

4. That this Motion for Rehearing is supported by the af-

fidavit of the Plaintiff, RAYMOND R. GALLAGHER.

5. That concurrence in the relief requested was asked of

Defendants’ counsel but declined.

Glotta, Adelman, Dinges, Davis,

Middleton, Riley & Murphy, P.C.

By: (s) Robert J. Dinges (P 12799)

Attorney for Plaintiff

1529 Broadway - 4th Floor

Detroit, Michigan 48226

Phone: 964-1190

Motion for Rehearing

STATE OF MICHIGAN _ )

;

COUNTY OF WAYNE _ )

ROBERT J. DINGES, being first duly sworn, deposes and

says that he is attorney of record for RAYMOND R. GAL-

LAGHER, that he has read the foregoing MOTION FOR RE-

HEARING, by him subscribed, and that he knows the contents

thereof, and that the same is true of his own knowledge based

upon the records and file except as to those matters therein

stated to be upon information and belief, and as to those, he

believes is to be true, and he believes that the MOTION FOR

REHEARING should be granted.

(s) Robert R. Dinges (P 12799)

Subscribed and sworn to before me this 16th day of Feb-

ruary, 1977.

(s) Naomie Williams

Notary Public, Wayne County, Michigan

My Commission Expires: July 2, 1978